The 18th Amendment to the Constitution is at the centre of a public debate that should have taken place in 2010, before it was passed. Clear, rational arguments against the enactment that had been scorned in the flurry to have it passed are being resurrected — four years too late. A presidential election is looming [...]


Debate on 18th A– four years too late


The 18th Amendment to the Constitution is at the centre of a public debate that should have taken place in 2010, before it was passed. Clear, rational arguments against the enactment that had been scorned in the flurry to have it passed are being resurrected — four years too late.

A presidential election is looming and the incumbent Head of State and Government is determined to contest a third term. The moment that the 18th Amendment was drafted for, is upon the country but there is a turn in the tide. Some ruling party parliamentarians, including ministers and other coalition allies, are now creeping out of the woodwork to evince strong regret

But what is in focus here is serious constitutional change that removed the two-term limit on the presidency and gave that same office sweeping sway over any institution that could deign to check its power. “Sorry” doesn’t seem to cut it.

As the Sunday Times editorial of September 5, 2010, on the eve of the 18th Amendment being put to vote warned, “Once these amendments are passed, all pretences to an independent public service will disappear — it will be the President and/or the Cabinet of Ministers who will henceforth appoint those who will head the ‘State Service’ which here would include the Judiciary and the Election arms.”

We also cautioned that checks and balances and the separation of powers principles were being thrown overboard and that a new political culture was being institutionalised. “Why the Government wants to tighten its grip over these vital arteries of Democracy is clear,” we wrote. “The intentions, however, could also be well-meaning. But that the path to hell is also paved with good intentions is an old saying.” The facts speak for themselves.

Four years down that path, it is clear where intentions lie. The Cabinet of Ministers, a veritable platoon of emasculated individuals, has little to do with anything. They are tools that rubberstamp deals made by a coterie behind closed doors. Transparency in governance, which the public is entitled to, has become an illusion.

There is no accountability for waste or corruption. The country has been driven to phenomenal indebtedness to one country — China. A select few are becoming conspicuously rich, without explanation. Policies are drafted without public consultation. Laws — such as the controversial Divineguma Act and the Revival of Underperforming Enterprises and Underutilised Assets Act — are introduced to further enrich and strengthen the Government.

The incumbent President appoints everyone from judges of the superior and appellate courts to the vice chancellors of universities, chiefs of police and election apparatuses, the bribery and public service commissions, secretaries of ministries to heads of military and of diplomatic missions — at his “whim and fancy” and they remain there at his “whim and pleasure”. He is Commander-in-Chief of the armed forces and routinely apportions to himself a sizeable chunk of the national budget. He has taken over the Attorney General’s Department and the Legal Draftsman’s Department. In addition to enormous power, he enjoys immunity.

Public institutions, which are the backbone of good governance, have been shattered. Top positions in boards, corporations, authorities and other state entities are held by friends, henchmen and family members. Officials consider themselves beholden to the appointing authority and answerable to none but him. They disregard the wider public in whose trust they run those institutions.

Today, the reach of the Executive is wider, deeper and more all-encompassing than ever before. This status quo will be true of anybody else who takes over this office, whenever that may be. If the 1978 Constitution by creating the Executive Presidency had centralised power in the hands of one individual, the 18th Amendment made it infinitely worse.

While it was tailored to meet the political ambitions of one individual, it will also serve the aspirations of all future Executives of Sri Lanka. The country could see interminable presidential cycles with no mechanism to check a slide into dictatorship or a sham democracy, the shades of which we already witness.
None of this was unforeseeable. The dangerous pitfalls of the enactment were elucidated by legal experts, some of whom made submissions before the five-judge bench of the Supreme Court headed by Shirani Bandaranayake, Chief Justice 43.

One of the arguments against the removal of the two-term limit was that the longer a chief executive holds power, the more the delineation between state and ruling party becomes blurred. The balance of power between Government authorities is eroded. The authority of legislatures, judiciaries, electoral authorities and other political parties is weakened, thereby leading to authoritarianism.

It was also pointed out that the 18th Amendment sought to keep the President’s powers intact while at the same time removing all perceived obstacles to the exercise of Executive power. It lifted the limit on the President’s term of office as well as restrictions on the exercise of his power — a double whammy.
The Jathika Hela Urumaya has now called for the abolition of the Executive Presidency. For Sri Lankans, it’s a tired old case of, “Been there, seen that and bought the t-shirt”. They have gone down this tunnel so many times before only to find that, regardless of election pledges, there really is no light at the end of it.

Sri Lanka can no longer afford this downward slide, this rot that is suffocating our institutions from within. One might well argue that the abolition of the Presidential term limit by the 18th Amendment was not as bad as the clause that gifted powers over all appointments to the Executive. After all, there is little difference between a Presidential dictatorship and a Prime Ministerial dictatorship, the likes of which Sri Lanka experienced during the 1970-1977 period.
“For forms of Government, let fools contest; that which is best governed is best” was an age-old saying of a political sage. And if a Prime Minister can contest thrice, why not a President? The problem is that when all the institutions come under such a President’s direct political control, that’s the double-whammy.

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